Commonwealth v. Fontain
| Citation | 127 Mass. 452 |
| Parties | Commonwealth v. Marc Fontain |
| Decision Date | 24 October 1879 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Worcester. Complaint under the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance.
In the Superior Court, on appeal, the defendant pleaded guilty to the complaint. Upon the hearing on the matter of sentence the defendant introduced no evidence. But it appeared by evidence offered in behalf of the government, that the defendant had been convicted before a trial justice, within one year, of the offence of illegally keeping intoxicating liquor for sale, with intent to sell the same. It was admitted by the government, that the defendant had not before the present time, been convicted of any similar offence to the one charged in the complaint in question unless the offence of illegally keeping with intent to sell was a similar offence. Aldrich, J., thereupon ruled, as matter of law, that the court had no discretion, in the matter of sentence, to impose a fine without imprisonment, or vice versa, but only as to the amount of the fine and length of imprisonment, but was compelled under the St. of 1866, c. 280, §§ 1, 3, to sentence the defendant, if any sentence was to be pronounced, to pay a fine and to suffer imprisonment, on the ground that the offence of illegally keeping intoxicating liquor with intent to sell the same was a "similar offence" to the one charged in the complaint in the present case, within the meaning of that phrase in the St. of 1866, c. 280, § 1; and thereupon proceeded to sentence the defendant to pay a fine of $ 100 and the costs of prosecution, and to be further punished by confinement at hard labor in either of the houses of correction within the county of Worcester, for the term of three months. The defendant alleged exceptions.
Exceptions sustained.
F. A. Gaskill, for the defendant.
G. Marston, Attorney General, for the Commonwealth.
The defendant was convicted under the Gen. Sts. c. 87, §§ 6, 7, upon a complaint for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors.
When he was brought before the court for sentence, it appeared that he had been previously convicted, under the St. of 1875, c. 99, of illegally keeping intoxicating liquor for sale; and that he had not previously been convicted of any other offence claimed to be similar to the one charged in this complaint. Whereupon the presiding justice ruled, as matter of law, that the court had no discretion, in the matter of sentence, to impose a fine without imprisonment, or imprisonment without a fine, but was compelled, under the St. of 1866, c. 280, to impose a sentence of both fine and imprisonment.
We are of opinion that this ruling proceeded upon an erroneous construction of the St. of 1866.
This statute provides, in § 1, that "when it is provided by law that an offender shall be punished by a fine and imprisonment in the jail, or by a fine and imprisonment in the house of correction, such offender may, at the discretion of the court, be sentenced to be punished by such imprisonment without the fine, or by such fine without the imprisonment, in all cases where the offender shall...
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